Bashid Ahmad Vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4313 of 2024

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Bashid Ahmad Son of Irshad Ahmad, resident of village - Kunali, Supaul, Kunali Bazar, District - Supaul, Bihar - 847451.

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... ... Petitioner/s Versus

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The State of Bihar through the Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna.

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The Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna.

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The Director, Panchayati Raj Department, Government of Bihar, Patna.

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The District Magistrate, Supaul.

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The District Panchayati Raj Officer, Supaul.

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The Sub-Divisional Officer, Nirmali, Supaul.

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The Executive Officer, Panchayat Samiti Cum Block Development Officer, Nirmali, Supaul.

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The Deputy Development Commissioner (DDC) Supaul.

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Ram Pravesh Prasad Singh, son of not known to the petitioner, at present Member Panchayat Samiti, (Panchayat Samiti Kshetra No. 04), Supaul. Member of Prakhand Panchayat Samiti Nirmali, Block- Nirmali, District - Supaul.

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Hareram Mehta, Son of not known to the petitioner at present Member Panchayat Samiti, (Panchayat Samiti Kshetra No. 02), Supaul. Member of Prakhand Panchayat Samiti Nirmali, Block- Nirmali, District - Supaul.

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Mamta Devi, Wife of not known to the petitioner, at present Member Panchayat Samiti, (Panchayat Samiti Kshetra No. 06), Supaul. Member of Prakhand Panchayat Samiti Nirmali, Block- Nirmali, District - Supaul.

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Chandrakala Devi, Wife of not known to the petitioner, at present Member Panchayat Samiti, (Panchayat Samiti Kshetra No. 10), Supaul. Member of Prakhand Panchayat Samiti Nirmali, Block- Nirmali, District - Supaul.

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Bibi Maryam, Wife of not known to the petitioner, at present Member Panchayat Samiti, (Panchayat Samiti Kshetra No. 03), Supaul. Member of Prakhand Panchayat Samiti Nirmali, Block- Nirmali, District - Supaul.

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... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr.Anand Kumar Ojha, Advocate Mr.Abhishek Raj, Advocate Mr.Ashok Kumar Karaut, Advocate For the Private Respondents: Mr.Amit Shrivastava, Senior Advoctate Mr.Ranjeet Choubey, Advocate For the Respondent/s : Mr.Dhurjati Kumar Prasad, GP 14 ====================================================== CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH

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Patna High Court CWJC No.4313 of 2024 dt.15-03-2024 2/14

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ORAL JUDGMENT

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Date : 15-03-2024

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Heard Mr.Anand Kumar Ojha along with Mr. Abhishek Raj and Mr.Ashok Kumar Karaut, learned counsels appearing on behalf of the petitioner, Mr. Amit Shrivastav (Senior Advocate) along with Mr. Ranjeet Choubey, learned counsels for the private respondents and Mr. Dhurjati Kumar Prasad, learned GP 14 for the State.

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Mr. Anand Kumar Ojha, learned counsel at the very outset submitted that Interlocutory Application No.1 of 2024 has been filed for modification of the prayer made in paragraph no.1 of the writ petition.

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The Interlocutory Application no.1 of 2024 for the pleadings made therein and reasons assigned in the second paragraph and the affidavit is allowed. Accordingly, paragraph no.1 of the main writ petition is directed to be modified.

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In paragraph no.1 of the present writ petition, the petitioner has prayed for following relief(s) : -

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“I. Issuance of writ in the nature of certiorari for quashing the order dated 22.02.2024 contained in Memo No. 158-2 dated 22.02.2024 passed by the collector, Supaul (Respondent No.4) by which, in compliance of the Order dated 06.02.2024 passed in CWJC No. 402/ 2024, direction was issued to the executive officer for convening the Special Meeting to discuss charges for No Confidence against Pramukh and Up Pramukh without any discussion on specific plea of

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vague, general and ambiguous charges not sustainable for discussion duly taken in the representation of the petitioner had been ignored.

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II. Issuance of declaration that the Collector had failed to hear all the parties which included the Up Pramukh also against whom the common charges had been leveled which is illegal on the face of it considering the positioning of pramukh and Up Pramukh different under the Bihar Panchayati Raj Act.

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III. Issuance of declaration that the collector, Supaul violated the order of the Hon'ble Court by not hearing the Up Pramukh facing identical charges and for not considering the plea of the Pramukh based on right to natural justice and fair opportunity as guaranteed under the Act and as held by the Division Bench in the case of Sindhu Devi 2002 (1) PLJR 281 (Para 7 to 8).

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IV. To set aside the Letter dated 27.02.2024 for holding special meeting on 11.03.2024 and the Letter of the Executive Officer under Letter No 310 dated 27.02.2024 on the ground of being illegal and also to declare the selection of 11.03.2024 as date for special meeting being illegal and without jurisdiction being contrary to the Act and the Judgments of this Hon'ble Court.

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V. Issuance of direction to restrain the respondents from convening the meeting dated 11.03.2024 as the decision of the collector itself is illegal rendering all subsequent proceeding as bad in view of Law laid down in the case of state of Punjab v. Davinder Pal Singh reported in (2011) 14 SCC 770 (Para 107 to 110).

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Before filing of the present writ petition, the

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petitioner had filed CWJC No.402 of 2024. The petitioner and the respondents, who were present in the Court had jointly

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prayed that the matter be referred before the District Magistrate-cum-Collector under Section 157 of the Bihar Panchayat Raj Act, 2016 (hereinafter to be referred to as the ‘Act, 2016’) to pass a reasoned order in accordance with law, after giving due opportunity of hearing to the affected parties. The District Magistrate pursuant to the said order passed detailed order dated 22.02.2024 contained in Memo No.158-2 dated 22.02.2024. The District Magistrate has taken note of the operative part of order dated 11.01.2024 and 06.02.2024 passed in CWJC No.402 of 2024 of this Court and stated that the petitioner had appeared in the meeting fixed by him on 22.02.2024, after giving prior intimation through the B.D.O.cum-Executive Officer, vide letter no.275 dated 20.02.2024. Name of the elected members, who had participated in the said meeting has been mentioned in the order. The elected members are, namely, 1. Sri Ram Pravesh Kumar Yadav, 2. Shri Hare Ram Mahto, 3. Shri Sunil Kumar Sharma, 4. Smt. Mamta Devi, 5. Smt. Bibi Mariyam and 6. Smt. Chandrakala Devi, who had supported the allegation made in the requisition dated 29.12.2023.

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Considering the objection raised by the members, who were present, as well as, the written objection filed by the

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Pramukh on 02.01.2024, the District Magistrate proceeded to direct the elected members to fix a date of meeting for holding special meeting of ‘No Confidence Motion’ against the Pramukh and Up-Pramukh. The specific reference has been made in the said order that the Up-Pramukh, who has also filed CWJC No. 1134 of 2024 (Shanti Devi- Vrs. -The State of Bihar & Ors.) had refused to accept the notice dated 20.02.2024 communicated to her for participating before the District Magistrate. Before the said notice dated 22.02.2024, the B.D.O.-cum-Executive Officer had communicated to the petitioner, who is the Pramukh of Panchayat Samiti.

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This Court had passed order on 06.02.2024 directing final adjudication to be done by the District Magistrate in exercise of power under Section 157 of the Act, 2016. Letter No.275 dated 20.02.2024 is specific with respect to filing of objection and giving opportunity to all the elected members including the Pramukh and Up-Pramukh to have participated in the meeting.

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Mr. Anand Kumar Ojha, learned counsel appearing on behalf of the petitioner informed that in fact vide letter dated 13.02.2024, the District Panchayat Raj Officer had only intended to communicate that the elected members were

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required to tender their appearance before the District Magistrate on 22.02.2024 addressed to the Pramukh and one elected member, Ram Pravesh Kumar Yadav, to whom notice is addressed.

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Learned counsel appearing on behalf of the petitioner assailing the requisition dated 29.12.2023 submitted that the same is vague as it has been addressed to both Pramukh and Up-Pramukh calling for the special meeting for holding no confidence motion against them. The charges made in the requisition is re-produced hereinafter as follows : -

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“1- iz[k.M ds lHkh lfefr {ks=ksa dk lekuqikfrd :i ls fodkl dk;ksZa dk ugha djok;k tkuk cfYd vius rFkk vius dqNsd ilanhnk lfefr lnL;ksa ds {ks= esa gh vf/kdka’k jkf”k dk mi;ksx djukA

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2- iapk;r lfefr lnL;ksa ds lkFk lEekutud vkpj.k u djrs gq, vf/kuLFk lsoknkj ds rjg O;ogkj djuk rFkk lkeqfgd rkSj ij ve;kZfnr Hkk’kk dk iz;ksx djukA

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3- fu;fer rkSj ij iapk;r lfefr dk lkekU; cSBd dk ugha cqyk;k tkuk vkSj u gh mi lfefr;ksa dk xBu dj O;ogkj esa ykuk ckotwn blds vius vkidks lexZ “kfDr lEiUu iznf”kZr djukA

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4- fodkl dk;Z ls lacaf/kr fofHkUu enksa dh jkf”k dk vfu;fer :i ls canj&ckWaV djukA vr% vkils vuqjks/k gS fd foHkkxh; fu;ekuqdqy le;k/khu vfoyac fo”ks’k cSBd cqykus dk d’V fd;k tk; rkfd iapk;r lfefr lnL;ksa dks viuk i{k j[kus dk volj fey ldsA”

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Learned counsel appearing on behalf of the petitioner has proceeded to submit in above background that holding of order dated 22.02.2024 passed by the District Magistrate under Section 157 of the Act, 2006, directing the

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B.D.O.-cum-Executive Officer for holding of special meeting not in accordance with law. The said meeting can also not be sustained being in violation of the order passed by this Court dated 06.02.2024 also for the reason that no opportunity was given to the affected parties particularly to Up-Pramukh who being main affected party. Order dated 22.02.2024, having not followed the principle of natural justice and also the provisions of Section 157 of the Act, 2006 is fit to be set aside and quashed.

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Learned counsel further submitted that the Collector was required to consider that by a common requisition addressed to the Pramukh and Up-Pramukh, the requisition being not specific either with respect to the Pramukh and Up-pramukh respectively, which is in violation of the provision of Section 44 of the Act, 2006, rendering the charges to be vague and not specific and deliberation based on the vague charges can not be sustained in the eye of law.

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Learned counsel further submitted that Sub Section 3 of Section 50 of the Act, 2006 provides that the Pramukh is the Ex-officio member and the Chairman of the General Standing Committee, while the Up-Pramukh shall be the Chairman of the Social Justice Committee. The charges

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contained in the requisition fails on this ground also considering that the Up-Pramukh is accountable only with respect to the social justice Committee, in terms of Sub-Section 3 of Section 50 of the Act, 2006. The charges are not specific in that regard, while the District Magistrate has deliberately not discussed the order dated 22.02.2024.

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Heard the parties.

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All the elected members of the Panchayat Samiti including Pramukh and the Up-Prmukh were given opportunity to file their objection before the District Magistrate. Pramukh and the Up-Pramukh are aggrieved by the requisition on the ground that the charges levelled against them are vague. Both, the Pramukh and the Up Pramukh are heads of different Committees under the provision of Section 50 of the Act, 2006. Therefore, such distinct functions assigned to the Pramukh and the Up Pramukh under the Act, 2006 calls for specific allegations as to in what manner the Pramukh and the UpPramukh have not acted in accordance with the provision as contained in Section 50 of the Act, 2006. Secondly, whether the principle of natural justice has been violated considering the allegation made by the petitioner that the Up-Pramukh was not given notice to file objection before the District Magistrate on

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22.02.2024. As has already been referred to in Annexure P/2, P/3 and P/5. Annexure P/3 is the requisition made by the elected members against the Pramukh and Up-Pramukh for holding of special meeting against them. Charges have already been taken note of in earlier paragraph of this order.

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I have taken note of letter dated 13.02.2024. The said letter refers to letter No.338-2 dated 13.02.2024, communicated by the District Panchayat Samity Raj Officer, Supaul. The content of the letter shows that all the interested parties are required to be present before the District Magistrate on 22.02.2024, for filing their objection in favour of the special meeting called against the Pramukh and Up-Pramukh.

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In my considered view, the communication made on 13.02.2024, vide letter no.338-2, the Pramukh was under obligation to inform all the respective elected members about their presence before the District Magistrate on 22.02.2024. The letter dated 13.02.2024 can only be taken to be mere communication about the proposed meeting to be held on 22.02.2024, which has been called by the District Magistrate in exercise of power under Section 157 of the Act, 2016. The Executive Officer was required to produce all the records and report before the Collector for proper adjudication in light of

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the order passed by this Court.

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Taking note of the above charges, which have been quoted in preceding paragraphs, I am not inclined to hold that in the requisitions, charges are not specific in any manner. The charges are clear and specific. The petitioner is acquainted with the charges having brought the requisition on record of the writ petition as Annexure ‘P/2’ (series) along with the letter of the Executive Officer, who had communicated to all the members regarding date fixed of special meeting. The special meeting took place on 11.03.2024 and the proceeding of the meeting was drawn, which has been brought on record by the petitioner by filing Interlocutory Application No.1 of 2024, wherein the petitioner has prayed for in paragraph no.3 for additional relief(s) in addition to the reliefs prayed in paragraph no.1 of the main writ petition by challenging the special meeting dated 11.03.2024, which is re-produced hereinafter as follows :

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“I. To quash the decision of the Special Meeting dated 11.03.2024 on the ground that the Order of the Collector allowing Special Meeting was without hearing Up Pramukh and without considering the written plea of the Pramukh.

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II. To hold and declare that no Special Meeting was legal for discussing the identical charges against the Pramukh and Up Pramukh as there cannot be same charges against the both

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having different role assigned under the Act.

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III. To declare the Order of Collector being illegal and in disobedience of the Judicial Order, the meeting dated 11.03.2024 itself is illegal.

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IV. To restrain/interdict / prohibit all the Respondents from acting pursuant to the decision of the Meeting dated 11.03.2024 in as much as that the same may be kept in abeyance during the pendency of the writ application.”

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I do not find the charges to be vague in any manner and warranting any interference, as the same is not in violation of Section 44 (3)(iv) of Act, 2006. Before fixing the date for entertaining the objection as well as in support of the acquisition made in the requisition, all the members of the Panchayat Samiti including the Pramukh and Up-Pramukh were duly communicated and given opportunity. Pramukh against whom a joint requisition was made and the Pramukh had chosen to file his written objection on 22.02.2024, but for the reasons best known to him, he is accepting that no notice was given to the Pramukh and the Up-Pramukh and he had not chosen to communicate the Up-Pramukh about the meeting, which has been convened by the District Magistrate.

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Upon consideration of the order passed by the District Magistrate and from Annexures P/3 and P/5, it is also clear that all the elected members of the Panchayat Samiti were

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already informed and it has been recorded in the order that the Up-Pramukh chose not to accept the notice dated 22.02.2024 even considering the fact that the communication was made by the District Panchayati Raj Officer about the holding of the meeting dated 22.02.2024. The Pramukh, who is the present petitioner, and one Ram Pravesh Kumar Yadav were obligated to inform to all the elected members of the Panchayat Samiti, including the Up-Pramukh who is also an elected member of the Panchayat Samiti.

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The petitioner has filed a detailed objection, which also shows that he has considered the charges to be specific and given answer to each and every charges and in a written objection, he has stated that the charges are vague. As such, the petitioner can not be said to have not participated in the meeting.

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Considering the fact that the petitioner had participated and filed his written objection without taking plea that Up-Pramukh was not given any opportunity on 22.02.2024 can not be considered in any manner that the Up-Prmukh had himself not chosen to file any objection before the District Magistrate and at the same time he abstained from participating in the meeting. The motion was held and the Presiding Officer

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declared that out of total 8 elected members, who had participated in the meeting, 06 voted against the Pramukh and Up Pramukh after deliberation on the charges and two votes were rejected.

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Since the written statement has been filed by both the Pramukh and Up-pramukh, the action of the District Magistrate in passing of order dated 22.02.2024 cannot be held to be illegal having not complied with the provision of the Act.

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23.The petitioner can only challenge any action or call for judicial review in case where his legal right has been violated. However, from the facts of the present case, it is made clear that the petitioner can not claim that his legal right has been defeated.

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This Court in the case of Bijal Paswan Vs. The State of Bihar (CWJC No.1592 of 2024) after taking into consideration the ratio laid down in the case of Dharmsheela Kumari vs. Hemant Kumar & Ors. reported in 2021 (3) PLJR 346 and Sarita Kumari. vs. the State of Bihar (L.P.A. No. 940 of 2008), which was not considered in Dharmsheela case (supra), has refereed the matter before the Larger Bench. The issue which now requires to be considered is that once the order passed by the District Magistrate has been held to be in

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accordance with the law and the petitioner having not participated in the meeting held on 11.03.2024, whether they have waived of their right by not participating in the meeting in accordance with the provision of Section 44 of the Act, 2006 has been discussed in the law laid down by the Apex Court in the case of Smt. Samshad Khatun Vs. the State of Bihar & Ors., reported in 2010(1)PLJR 929 , whih has been relied by this Court in Bijal Paswan (supra) case. I am of the opinion that both on the facts and law, the case of the petitioner is covered by the case of Smt. Samshad Khatun (supra).

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I do not find any merit in the present writ petition, accordingly the present writ petition calls for no interference and is disposed of.

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(Purnendu Singh, J)

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chn/-

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AFR/NAFR	NAFR
CAV DATE	NA
Uploading Date	21.03.2024
Transmission Date	NA

Bashid Ahmad v. The State of Bihar

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Bashid Ahmad v. The State of Bihar

Case brief

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